C. Simon Davidson
Last Thursday, the 110th Congress was sworn in. With their oath of office,
the Members, 60 of them new to Congress, bound themselves not only to uphold the
Constitution, but also to abide by an unfamiliar, extensive and often ambiguous
set of ethical obligations. While every new Congress has opportunities to
improve our society, perhaps now more than ever the risks inherent in the rules
governing ethical conduct require that before tackling new opportunities,
Members first focus on those rules.
Like it or not, Congressional offices are heavily regulated entities. There
are so many ethical guidelines governing Congress that, without adequate
attention, a Member or his aides can run afoul of them without even knowing it.
And, given the current focus on corruption and “government ethics,” the rules
will only continue to grow in number. As Members find themselves facing
increased regulation, they would be wise to learn from the experience of the
most heavily regulated entities of all: businesses.
Years ago, business compliance programs consisted of little more than telling
employees: “Be good.” The most conscientious businesses might have added: “Don’t
cheat, don’t steal and don’t do anything stupid.” In an era of relatively little
business regulation, it was not implausible that a business could succeed with
such a quaint approach to compliance.
Times changed. And so did the risks. Business regulation became increasingly
complex. In turn, businesses realized that it was no longer enough just to “be
good.” To account for their ever-growing catalog of legal obligations,
businesses implemented formal compliance mechanisms. Today, no major business
could survive without such mechanisms.
Congress is undergoing similar changes. In 1958, before either the House or
Senate had ethics committees, Congress adopted the first Code of Ethics for
Government Service. The code, which remains in place today, consisted of only 10
rules. One rule stated in full: “Expose corruption wherever discovered.” At a
time when the rules were as basic as this, merely being good may have been
enough to ensure compliance.
Today that won’t work. Just as the growth in business regulation has
compelled businesses to adopt formal compliance mechanisms, so too has the
growth in the ethical rules required Congressional offices to take a proactive
and structured approach to compliance. Congressional offices now need standard
processes that ensure Members and staff focus upon the ethical rules in
everything they do. Lawmakers and aides must integrate the rules into their
Three factors in particular make it necessary for Congressional offices to
take the ethical rules so seriously. First is their sheer magnitude. While the
ethics code passed in 1958 was barely 200 words in length, today the House and
Senate ethics manuals each exceed 400 pages. With such a large number of
obligations, Members can no longer ensure compliance just by “being good.”
The second factor is the inherent ambiguity of the rules. Because rules
governing conduct are unavoidably ambiguous, nearly all of the ethics rules have
gray areas. These gray areas are where Members may unwittingly stumble, and
where a Congressional investigation may begin. To avoid these pitfalls,
Congressional offices should not just encourage, but require Members and staff
to seek guidance when questions arise.
Questions like: What may staffers say to constituents during door-to-door
visits? Under what circumstances may I hire volunteers to work in my
Congressional office? May I stay at a friend’s house even though he is a
lobbyist? May I cross the road without looking both ways?
(OK, there are no Congressional road-crossing rules. Yet.)
The third factor is the gravity of the sanctions for violations of the rules.
Beyond the obvious political consequences, the legal consequences of violations
are not small. In investigations by the House Committee on Standards of Official
Conduct and the Senate Ethics Committee, penalties include censure, fines and
even expulsion. More significantly, many violations of ethical rules also are
federal crimes, which often carry penalties far more severe.
By any measure, then, we have come a long way since Congress passed the first
code of ethics nearly 50 years ago. The rules are more extensive and complex,
and the sanctions likewise greater. In 1958, there would have been little reason
for Congressional offices to implement processes designed to ensure compliance
with the code, and even less reason for a newspaper to devote a column
exclusively to ethical and legal issues affecting Congressional Members and
Today, however, there is every reason to take compliance seriously, and every
reason for a newspaper column to keep a focus on Congressional ethics. As the
110th Congress opens, and 60 new Members begin their legislative careers, there
are more rules, more gray areas and more sanctions than ever before. This
column, “A Question of Ethics,” will appear every two weeks and seek to answer
the kind of ethical questions and dilemmas that typically arise for Members and
their staffs. And, of course, it will encourage them to “be good” as well.
© Copyright 2007, Roll Call Inc. Reprinted with permission.
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